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Semansky v. Archibald

126 N.Y.S. 385 Court N.Y. App. Term Decision date 1911-01-05 English

Delivered by BRADY, J.

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p. 385
SEMANSKY v. ARCHIBALD et al.
(Supreme Court, Appellate Term.
January 5, 1911.)

Headnote

Landlord ■ and Tenant (§ 200[1] )—Tenancies from Month to Month—Creation—Holding Over After Term.
Where a tenant holds over after the expiration of his term, the law implies an agreement to hold for. a year upon the terms of the prior lease, if that lease was for a year, so that, where the landlord notified the tenant that after the expiration of his lease the rent would be a larger sum per month, and that the tenancy would be by the month, and the tenant’s secretary stated that the tenant, an association, would meet and leave it to its council to decide, the tenant was liable for rent for the month succeeding the expiration of his former lease, where it held over into such month, though, on being notified on the 1st of the month by the landlord to pay the increased rent, it refused to pay and gave notice that it would vacate; the fact that the tenant was moving out as fast as possible being immaterial, no absolute impossibility for it to have moved before the beginning of the monthly term being shown.
[Ed. Note.—Eor other eases, see Landlord and Tenant, Cent. Dig. §§ 794-797; Dec. Dig. § 200.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Harry N. Semansky against James Archibald, as president, and another, as secretary, of the District Council of New York City Brotherhood of Painters, Decorators, and Paper Hangers, and another. From, a judgment for defendants, plaintiff appeals.
Reversed, and new trial ordered.
Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
Aaron Morris, for appellant.
P. Henry Delehanty, for respondents.

This action was brought by plaintiff to recover from defendant rent for the month of September, 1910. It appears from the evidence that the defendant held under a lease expiring August 30, 1910; that prior to the expiration of the lease the plaintiff notified the secretary of said defendant that if it remained over in possession of the premises after the expiration of the lease the rent would be $150 per month, payable in advance on the 1st day of the month, and that it would be under a monthly tenancy; that’the defendant’s secretary said that the association would have a meeting, and they would leave it to the council; that the defendant remained over after the expiration of the lease, and the rent for September had not been paid. The plaintiff made a demand on the defendant ror the rent at the increased rate on September 1, 1910. Defendant refused to pay the rent at the increased rate, and notified the plaintiff that they would move. On September 2, 1910, the plaintiff instituted summary proceedings for nonpayment of rent, and served notice on the defendant. On September 6, 1910, the return day, the defendant appeared in court, and was given until September 10, 1910, to vacate the premises. Defendant testified that they were moving

p. 386
out as rapidly as possible, and would have had all their things moved out by September 10th, but plaintiff locked the door and prevented defendant from moving the safe until September 11, 1910.

The pleadings were oral, and the action was tried by the court without a jury, and the justice gave judgment for defendant. There is no question here about the fact of holding over. It is not enough that there was a holding over, not unavoidable, which might have been provided against, and where the chief difficulty grew out of the defendant’s own act. No impossibility of removal was shown, merely difficulty and inconvenience, which should have been and might have been foreseen and provided against. The rule is well settled that where a tenant holds over after the expiration of his term the •law will imply an agreement to hold for a year upon the terms of the prior lease; that option to so regard it is with the landlord, and! not with the tenant, and the latter holds over his term at his peril. Commissioners of Pilots v. Clark, 33 N. Y. 251 . The act of the defendant holding over has given the plaintiff a legal right to treat him as a tenant, and it is not in his power to throw off that character, however onerous it may be. Conway v. Starkweather, 1 Denio,. 114 .

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

GIEGERICH, J., concurs. GAVEGAN, J., talcing no part.

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